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Thursday, May 17, 2018

A Response to the
Idea of Removing the Natural Born Citizen Clause From Our Constitution

By Mario Apuzzo, Esq.

May 17, 2018

University of Richmond School of Law Professor Kevin C.
Walsh proposes ridding our Constitution of its “natural born Citizen” clause.See his article, “The ‘Irish Born’ One American
Citizenship Amendment,” here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165238
. Professor Walsh writes that the original Constitution is not perfect and it
is time to change its actual text.In
that connection, he advocates that naturalized American citizens should be
eligible to be President.He states: “There
are not two classes of American citizenship, just one. It is time to repeal the
Natural Born Citizen Clause.”People
have posted comments to his article and Professor Walsh addresses them here

1.Question:If very few people care much about this
amendment, why would anyone sponsor it?

Professor Walsh’s response:Putting aside the fact that it is good for America generally, uses
include: (1) deflection of false “anti-immigrant” accusations based on a
lawmaker’s stance against illegal immigration; (2) attraction of votes from
naturalized citizens and their friends; (3) rejection of “blood and soil”
nationalism.

My comment:We are
supposed to believe without any explanation that this amendment would be “good
for America generally.”To avoid “’anti-immigrant’
accusations,” we are told we need to change our presidential eligibility by
getting rid of the natural born citizen clause, a clause that the Framers
included in the Constitution for national security’s sake.We are also told to change our presidential
eligibility so that some unstated person or party can garner more votes at the
polls.And the best of all, Professor Walsh
tells us that removing the natural born citizen clause will get rid of “’blood
and soil’ nationalism” from American politics.In his actual article, he calls it “’blood and soil’ white nationalism.”In that article he also says that politicians
should be amendable to advocating getting rid of the natural born citizen
clause to give the appearance of not being anti-immigrant(“easy inoculation against
the virulent accusation of being anti-immigrant”) and not being associated with
people who advocate such a bad idea.His
plan for getting the amendment accomplished is for Democrats to set up
Republican to do the job for them.His scheme
is for two-thirds of both Houses of Congress to propose the amendment, led by
Republicans who for the sake of winning elections should want to give voters
the appearance that they are not anti-immigrant or racists and supported by
Democrats who are already on board.It
looks like in Professor Walsh’s world, there should be no problem with “Russian
collusion.”Did it ever occur to Professor Walsh that blood and soil is what makes a nation state and that it is the
energy which when used properly keeps people free?

2.Question:What about competing loyalties to country of
birth for a candidate who is a naturalized citizen?

Professor Walsh’s response: Let’s remember we’re only
talking about eligibility. Presumably voters can decide about allegiance. And
there’s no good reason to treat circumstances of birth as a reliable proxy.
(The Manchurian Candidate was born in the United States.) With respect to
competing loyalties more generally, the naturalization process requires a
choice and newly naturalized Americans are akin to converts.

My comment:What Professor
Walsh does not address is the question of whether it is voters or parties who produce
our elected leaders.He should examine
why the Framers guaranteed the States a republican form of government and gave
us the Electoral College as part of the process for electing our President and
Commander in Chief.If voters without
more can in the heat and partisanship of an election be trusted to make the
right decision about who shall be the single person to wield not only the
executive power, but also all our military power, then why even have a
Constitution or even laws?Will Professor
Walsh next be advocating getting rid of our republican form of government and replace
it with mob rule?He states that
citizenship is no guarantee of allegiance.If the natural born citizen clause is to die because it is not a guarantee
of loyalty, then why have the age and residency eligibility requirements or any
requirements for that matter?Finally,
he tells us that a naturalized person is as loyal as a natural born citizen because
naturalization requires “a choice.”What
he fails to tell us is what exactly is that choice and how does it relate to
allegiance to the United States.

Needless to say, I am not impressed with the reasons that Professor Walsh puts forth for justifying his proposal to remove the natural born
citizen clause from presidential eligibility and ultimately from the
Constitution. The Framers inserted the clause into the Constitution to assure that
the constitutional republic would be preserved by requiring that the nation be
led in international relations and military combat by a person who had undivided
allegiance and loyalty to the United States. For those reasons, the clause is
worth preserving.

While I am at it, I might as well again state what my
position is on the meaning of an Article II natural born citizen.My years of research and litigation in the
courts have led me to the conclusion that the definition of a natural born
citizen comes from natural law and that under that law, which was codified into
the law of nations, a natural born citizen is a child who becomes a member of
society (“citizen”) at birth by virtue of his or her birth circumstances alone
and therefore needs no positive law to make or deem him or her a citizen.American common law at the time of the framing
of the Constitution reflected this natural law and law of nations understanding.See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ("The citizens
are the members of the civil society: bound to this society by certain duties,
and subject to its authority, they equally participate in its advantages. The
natives, or natural-born citizens, are those born in the country, of parents
who are citizens"); Minor v.
Happersett, 88 U.S. 162 (1875) ("all children born in a country of
parents who were its citizens became. . . natives, or natural-born
citizens"); accord U.S. v. Wong Kim
Ark, 169 U.S. 649 (1898) ("The child of an alien, if born in the
country, is as much a citizen as the natural born child of a citizen, and by
operation of the same principle").

Hence, there are two necessary and sufficient elements in
the definition of a natural born citizen under the common law with which the
Framers were familiar when they drafted the Constitution and therefore under
the Constitution, i.e., (1) birth or reputed birth in the country (2) to
parents who were both U.S. citizens at the time of the child's birth.Again, these elements are both necessary and
sufficient to make a natural born citizen (place of birth alone is necessary
but not sufficient).Satisfying just one
of the elements will not be sufficient for producing a natural born
citizen.This definition is enshrined in
the Constitution.While the 14th
Amendment could have changed this definition, it did not.Nor can any Act of Congress supplant it.Scholars and professors who have been publishing
papers on the meaning of a natural born citizen argue whether place of birth or
parentage is necessary or sufficient to make one a natural born subject.They fail to understand that these two
elements are both necessary and sufficient to make one a natural born citizen.

One other
point merits discussion.New Jersey Administrative
Law Judge Jeff Masin, in my latest New Jersey ballot challenges against
Senator Ted Cruz, found in 2016 that English and U.S. naturalization Acts were
incorporated into and became part of English and therefore U.S. common law and
that therefore under that “common law,” a child born out of the United States
to two or even one U.S. citizen parent is a natural born citizen. "The
more persuasive legal analysis is that such a child, born of a citizen-father,
citizen-mother, or both, is indeed a 'natural born citizen' within the
contemplation of the Constitution," ALJ Masin wrote. The full decision can
be read here:https://www.scribd.com/doc/308269472/NJ-Judge-Advisory-Opinion-Rules-Canadian-Born-Cruz-Eligible-To-Be-President-4-12-2016.Reduced, this means that he concluded that
birth to one U.S. citizen parent, no matter where that child may be born in the
world, is sufficient to make one a natural born citizen.I objected to this position and holding, arguing that if it
were correct that American common law had been so transformed by such statutes
and such common law formed the basis of the constitutional definition of a
natural born citizen, then all of Congress’s naturalization Acts since the
beginning of our nation have been unconstitutional and the U.S. Supreme Court, which
has ruled on the meaning of U.S. citizenship and interpreted those Acts throughout
the centuries, has gotten it wrong. The Supreme Court ruled in 1967 in Afroyim v. Rusk, 387 U.S. 253 (1967) that the government can expatriate
an American citizen only after he or she commits a voluntary act that demonstrates
an intent to renounce his or her U.S. citizenship. The Court said: “We hold
that the Fourteenth Amendment was designed to, and does, protect every citizen
of this Nation against a congressional forcible destruction of his citizenship,
whatever his creed, color, or race. Our holding does no more than to give to
this citizen that which is his own, a constitutional right to remain a citizen
in a free country unless he voluntarily relinquishes that citizenship.” Id. at 268. If the Fourteenth Amendment has such power
which I agree it does, then, if ALJ Masin is correct, it, along with the Fifth
Amendment, can also be used as a basis for arguing that Congress has since the
beginning of our nation violated the Constitution by not recognizing the
natural born citizen status of all children born out of the United States to
one or two U.S. citizen parents. Neither
ALJ Masin nor the New Jersey Appellate Division addressed my observation and objection.

The debate on the meaning of a natural born citizen
continues.It will not end until the
U.S. Supreme Court rules on the merits of the meaning of the clause. In the meantime, we should keep the natural born citizen clause right where it is, in our Constitution.

The parties stipulated in the Commonwealth Court of
Pennsylvania that Cruz was born on December 22, 1970, in Calgary, Alberta,
Canada; that his mother, Eleanor Darragh, was born on November 23, 1934, in the
State of Delaware; that his mother is and has always been a U.S. citizen from
the moment of her birth; that at the time of Cruz’s birth, his mother had been
physically present in the United States for more than ten years, including at
least five years after she reached the age of fourteen; and that Cruz was a
citizen at birth.

Elliott filed a petition with the Pennsylvania
Secretary of State to set aside the nomination petition of Ted Cruz pursuant to
which he sought to appear on the April 26, 2016 primary election ballot for the
Office of the President. In his
objection, petitioner alleged that given that Cruz was born out of the
territory and jurisdiction of the United States, his name should be stricken
from the Pennsylvania 2016 primary ballot because he is not a “natural born
citizen” within the meaning of Article II, Section 1, Clause 5 of the United
States Constitution.

Cruz filed his opposition, contending that Elliott’s
objection raised a non-justiciable political question. As to the merits, Cruz contended that a
person born to at least one U.S. citizen parent, regardless of where the child
may be born, if a citizen at birth under any law, is an Article II natural born
citizen through inheritance of citizenship from the parent (jus sanguinis) and
without needing to be born in the United States (jus soli).

The lower court ruled that the political question
doctrine did not apply and then went on to decide the merits of Elliott’s objection. After discussing some articles written by
some authorities, the court held that: “Having extensively reviewed all
articles cited in this opinion, as well as many others, this Court holds,
consistent with the common law precedent and statutory history, that a ‘natural
born citizen’ includes any person who is a United States citizen from birth. Accordingly, because he was a citizen of the
United States from birth, Ted Cruz is eligible to serve as President of the
United States, and the objection filed by Carmen Elliott to the Nomination
Petition of Ted Cruz is denied.”

Elliott appealed the Order of the Commonwealth Court
of Pennsylvania to the Pennsylvania Supreme Court, which affirmed that Order on
March 31, 2016, and also denied Victor William’s Notice to Intervene as
Appellant and Elliott’s application for oral argument.

In our Petition to the U.S. Supreme Court, we argue
that the Pennsylvania Supreme Court has decided an important question of
constitutional law concerning the definition of an article II natural born
citizen that has not been but should be settled by the U.S. Supreme Court. Having a person sit as President and Commander
in Chief of the Military who is not a natural born citizen puts the national
security of the United States vitally at risk.
Whether or not the President and Commander in Chief is legitimately
sitting in those offices impacts the nation’s foreign policy. The nation needs a definition of “natural
born citizen” for future presidential and vice presidential elections. Congress, the executive, the political
parties, and the voters cannot define a natural born citizen. Only the judiciary can define a natural born
citizen.

We argue that the Pennsylvania Supreme Court has
decided an important constitutional question in a way that conflicts with
relevant decisions of the U.S. Supreme Court.
Under those precedents, Cruz is at best a naturalized citizen of the
United States “at birth,” but only by virtue of a naturalization Act of
Congress, not an Article II natural born citizen under the common law to which
the Framers looked to define the clause when they drafted and adopted the
Constitution.

We also argue that U.S. Supreme Court review is
warranted because the Commonwealth of Pennsylvania and it Secretary of State,
by allowing an ineligible presidential candidate to place his name on the
presidential primary election ballot, has violated Elliott’s Fifth and Fourteenth
Amendment right and privilege to life, liberty, and property and equal
protection of the law which is implicated if Elliott is forced to live under a
president who is not an Article II natural born citizen.

Finally, we maintain that the important constitutional
issue raised by Elliott’s ballot challenge has not been mooted by Cruz
voluntarily suspending his presidential campaign because there is nothing
stopping Cruz from again running for President or Vice-President and the issue
of whether Cruz is a natural born citizen is capable of repetition yet evading
review.

We urge Americans who are committed to having our
politicians and government respect our Constitution and the rule of law to support our cause. Express yourselves not only privately, but
also in public. Write letters and leave
comments in print and electronic media. Call
into radio shows and tell the hosts what you think. Mr. Elliott is also conducting a fund raising
campaign to raise funds to meet our printing and filing expenses. We will appreciate your contribution which you can make at https://www.gofundme.com/h3xff4m4 .

I will be posting updates as the Petition makes its
way to a decision by the U.S. Supreme Court. Mario Apuzzo, Esq.

On July 14, 2016, Ted Cruz filed a waiver of his right to
respond to the Petition. The Clerk has distributed
the case for the U.S. Supreme Court conference of September 26, 2016. Here is how the docket appears:

No. 16-13

Title:

Carmon Elliott, Petitioner

v.

Ted Cruz

Docketed: June
30, 2016

Lower Ct: Supreme
Court of Pennsylvania, Middle District

Case Nos.: (29 MAP 2016)

Decision Date: March 31, 2016

~~~Date~~~ ~~~~~~~Proceedings and
Orders~~~~~~~~~~~~~~~~~~~~~

Jun 28 2016 Petition
for a writ of certiorari filed. (Response due August 1, 2016)

Jul 14 2016 Waiver
of right of respondent Ted Cruz to respond filed.

Jul 27 2016 DISTRIBUTED
for Conference of September 26, 2016.

UPDATE as of October 3, 2016:

The U.S. Supreme Court denied the petition for a writ of certiorari. See ORDER LIST: 580 U.S., published on Monday, October 3, 2016, accessed at https://www.supremecourt.gov/orders/courtorders/100316zor_9ol1.pdf , The Court did not give any reason for the denial which it normally does not give. The denial of such a petition is not a ruling on the merits. We will just have to wait until another day.

Monday, March 7, 2016

“TrusTed” (one of his campaign slogans) Ted Cruz, born
in a foreign nation to an alien father, is running for President. Eligibility to be elected President is found
in Article II, Section 1, Clause 5 which provides: "No Person except a natural born
Citizen, or a Citizen of the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President; neither shall any
person be eligible to that office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident within the United
States." Since Cruz was born in 1970,
he must be not only a “citizen” of the United States, but a “natural born
citizen” of the United States in order to be eligible to be elected President. So, is Cruz a natural born citizen? The answer is “no.”

Rules
of Constitutional Construction

In
interpreting what natural born citizen means, we should be reminded of what
Thomas Jefferson said regarding how the Constitution should be interpreted regarding
the jurisdiction of the states versus the jurisdiction of the national
government:

It may be
impracticable to lay down any general formula of words which shall decide at
once, and with precision in every case, this limit of jurisdiction, but there
are two Canons which will guide us safely in most of the cases . . . . 2 on
every question of construction [of the Constitution] carry ourselves back to
the time when the constitution was adopted, recollect the spirit manifested in
the debates, & instead of trying what meaning may be squeezed out of the
text, or intended against it, conform to the probable one in which it was
past" [sic].

"It is never to be forgotten that in the
construction of the language of the Constitution here relied on, as indeed in
all other instances where construction becomes necessary, we are to place
ourselves as nearly as possible in the condition of the men who framed that
instrument." Ex Parte Bain, 121
U.S. 1, 12 (1887). "[T]he
enlightened patriots who framed our Constitution, and the people who adopted it,
must be understood to have employed words in their natural sense, and to have
intended what they have said." Gibbons
v. Ogden, 22 U. S. 1, 188 (1824).

Chief Justice John Marshall in his dissent in Ogden laid out the rule of
constitutional interpretation thus:

Much too has been said concerning the principles of
construction which ought to be applied to the Constitution of the United
States.

On this subject also, the Court has taken such
frequent occasion to declare its opinion as to make it unnecessary, at least,
to enter again into an elaborate discussion of it. To say that the intention of
the instrument must prevail; that this intention must be collected from its
words; that its words are to be understood in that sense in which they are
generally used by those for whom the instrument was intended; that its
provisions are neither to be restricted into insignificance nor extended to
objects not comprehended in them, nor contemplated by its framers is to repeat
what has been already said more at large and is all that can be necessary.

Odgen
v. Saunders, 25 U.S. 213, 332 (1827). The key to interpreting the Constitution and
its natural born citizen clause is finding sources that are relevant to
informing on the meaning the Framers and Ratifiers gave to its words and
phrases and particularly that clause and how that meaning thus shaped the
understanding of the people for whose benefit the Constitution was ratified.

There are also some rules that our U.S. Supreme Court has established to
accomplish the task.

“It cannot be presumed that any clause in the
constitution is intended to be without effect, and therefore such construction
is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). “In expounding the
Constitution of the United States, every word must have its due force and
appropriate meaning, for it is evident from the whole instrument that no word
was unnecessarily used or needlessly added. The many discussions which have
taken place upon the construction of the Constitution have proved the
correctness of this proposition and shown the high talent, the caution, and the
foresight of the illustrious men who framed it. Every word appears to have been
weighed with the utmost deliberation, and its force and effect to have been
fully understood. No word in the instrument, therefore, can be rejected as
superfluous or unmeaning, and this principle of construction applies.” Holmes
v. Jennison, 39 U.S. 540, 570-71 (1840).
Our Supreme Court has consistently expressed "a deep reluctance to
interpret a statutory provision so as to render superfluous other provisions in
the same enactment." Pennsylvania
Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126,
2133, 109 L.Ed.2d 588 (1990); International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204,
113 L.Ed.2d 158 (1991) .

Hence, the “natural born citizen” clause of Article II
must be given independent effect and meaning from an English “natural born
subject” and from the “citizen” of the United States clause of Article I and II
itself, the Fourteenth Amendment, and naturalization Act of Congress. All Presidents must qualify as Article II
natural born citizens, not only as Fourteenth Amendment or statutory citizens
of the United States. The two clauses
have different and distinct meanings or they would not have their own
independent life in the Constitution and Acts of Congress. Article II says natural born citizen and the
Fourteenth Amendment and Acts of Congress say citizen of the United States. If being a citizen of the United States at
birth had the same meaning as being a natural born citizen, then the natural
born citizen clause would have no effect and be written out of the
Constitution. Such a construction is not
admissible. If we were not to give special meaning to the clause “natural born
citizen” and conclude that natural born citizen and born citizen of the United
States mean the same thing, the clause natural born citizen would be
superfluous. Hence, we have to give special meaning to the clause natural born
citizen.

The U.S. Supreme Court case of District of Columbia v. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637
(2008) is very instructive in providing a list of relevant sources and
methodology that our U.S. Supreme Court uses for interpreting the
Constitution. There the Court looked to
the text of the Constitution itself. It
looked to the structure of the Constitution.
It looked at what state constitutions said and also the Federalist
Papers. It said that debates on the
Constitution (pre-enactment statements) are not reliable when interpret the text
of the Constitution. The Court said the
debates are not reliable because they do not necessarily reflect the “general
understanding of disputed terms.” Rather, the Court said debates can be
persuasive given that it can be argued that the people who voted on the
legislation probably voted with that understanding in mind. Id. The Court said that post ratification
commentary are “sources to determine the public understanding of a legal text
in the period after its enactment or ratification.” Id. This inquiry “is a
critical tool of constitutional interpretation.” Id. This understanding is provided by
interpreters of the constitutional provision being examined in the years
following its enactment and ratification.
Id. Apart from analyzing the text of the natural
born citizen clause, the structure of the Constitution, and case law, here I
will present historical evidence of the type that our courts and legal
profession have always relied upon when trying to determine the meaning of a
specific clause in the Constitution.
This evidence shows that the Framers and Ratifiers relied upon American
common law, which incorporated the citizenship principles of the law of nations
and not those of the colonial English common law, for their definition of an
Article II natural born citizen. This
evidence shows and the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162, 167-68 (1875) confirmed that the
definition under that common law upon which the Framers relied for their
definition of a natural born citizen was a child born in a country to parents
who were its citizens at the time of the child’s birth. This evidence also shows that neither the
Fourteenth Amendment nor U.S. v. Wong Kim
Ark, 169 U.S. 649 (1898) or any other decision of the United States Supreme
Court has ever changed that definition and therefore it still prevails today.

The
Purpose of the Natural Born Citizen Clause

The original Constitution neither defines a citizen
nor a natural born citizen. The debates
at both the Constitutional Convention and in the state ratifying conventions
also give little information on the meaning of a natural born citizen. As Jefferson explained in his letter of June
12, 1823, the clause’s meaning can be found in the historical context of
English history and the American Revolution and what the Framers sought to
accomplish through the clause. Hence, a
correct understanding of a natural born citizen cannot be had unless we analyze
the purpose for which the Framers required all persons born after the adoption
of the Constitution to be natural born citizens and not just citizens in order
to be eligible to be President. Any
reasonable interpretation of the natural born citizen clause cannot thwart the
purpose for which the Framers required future Presidents and Commanders in
Chief of the Military to be natural born citizens. Let us now examine what that purpose was and
which still has relevance today.

During the Constitutional Convention, the delegates
relied heavily upon historical precedent, emanating from ancient Greece and
Rome, the English Glorious Revolution, and recent events from Holland and
Germany.

In England, because of the rules of royal succession,
it was not uncommon for the King to be foreign born and therefore a foreigner.
In the 1600s, the English crown was held by foreigners. From the Stuart House, King James VI, was
born in Scotland, and by succession became James I, King of England, Ireland,
and Scotland. His son, Charles I, was
also born in Scotland. The Protestant
William III, from the German House of Hanover, who came to power during the
Glorious Revolution of 1688 and thereby deposed the Catholic James II, was born
in Holland. Following the Glorious
Revolution in 1688, two Stuart queens ruled Great Britain, Mary II and Anne
(Prince Anne of Denmark), the daughters of James II and VII. Because of their family's Catholic ties,
under the provisions of the 1701 Act of Settlement and the 1704 Act
of Security, the crown passed from the House of Stuart to the House of
Hanover, which had its seat in Hanover, Germany. King George I and II were both born in
Hanover, Germany. King George II was the
last English monarch to be born out of Great Britain. The colonies were under the authority of King
George III, who was a descendant of the House of Hanover, but born in
England. George, in his accession speech
to Parliament, proclaimed: "Born and educated in this country, I glory in
the name of Britain".[1] He
inserted this phrase into the speech to demonstrate his desire to distance
himself from his German

forebears, who were seen as caring more for Hanover
than for Britain.[2]

The English did not trust their foreign monarchs. They deposed James II, who was a Catholic and
closely allied with his cousin, Louis XIV of France. Parliament declared in the Act of
Settlement:

2. That in case
the crown and imperial dignity of this realm shall hereafter come to any person
not being a native of this kingdom of England, this nation be not obliged to
engage in any war for the defence of any dominions or territories which do not
belong to the crown of England, without the consent of parliament.

3. That no
person who shall hereafter come to the possession of this crown shall go out of
the dominion of England, Scotland, or Ireland without the consent of
parliament.

***

5. That after
the said limitation shall take effect as aforesaid, no person born out of the
kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging
(although he be naturalized or made a denizen, except such as are born of
English parents) shall be capable to be of the privy council, or to enjoy an
office or place of trust, either civil or military, or to have any grant of
lands, tenements, or hereditaments from the crown to himself or to any other or
others in trust for him. [3]

Under the Act of Settlement anyone who became a Roman
Catholic or who married one was disqualified to inherit the English crown. The act also placed limits on the role of
foreigners in the British government.[4] Founders and Framers who were lawyers
would have been familiar with these English statutes and come to learn how the
British looked upon persons who were
foreigners.

America had recently fought an independence war with
Great Britain, which divided the loyalties of its own people. So, the Framers knew firsthand how critical
undivided loyalty and allegiance were to the future survival of their cause for
liberty and the preservation and perpetuation of the new republic. The Framers commanded that Presidents and
Commanders of the Military born after the adoption of the Constitution be
natural born citizens to assure that they would be born with those
circumstances which would best assure that they would develop the virtue of
love of country and thereby be free of monarchical and foreign influence in
whatever form it may present itself. The
historical record demonstrates that, with the Office of President being a
singular and all-powerful office both civilly and militarily, the Framers took
extra measures to keep monarchical and foreign influence out of the Office of
President. Rather than relying upon
Congress to elect the President, they gave that power to the Electoral
College. Unlike allowing “citizens” to
serve in Congress, they required future Presidents to be “natural born
citizens.” They looked to the natural
born citizen clause to assure that the President would in the future protect
and preserve the constitutional Republic which they had built. They sought to achieve this end by requiring
that those future Presidents and Commanders be born with unity of citizenship
and allegiance to the United States.
They looked upon the natural born citizen clause as a means to
accomplish their end. It is not up to us now to second-guess the Framers’
policy decision. Some want us to believe
that after having fought a bloody revolution with Great Britain in order to
constitute a republic based on the consent of the governed, and not wanting to
return to monarchical rule, the Framers would have allowed children born after
the adoption of the Constitution in the United States to British natural born
subject parents or out of the territory and jurisdiction of the United States
to be eligible for the Office of President and Commander in Chief of the
Military. We can ask ourselves whether the Framers would have allowed a child
born after the adoption of the Constitution in the United States to English
parents or out of the territory and jurisdiction of the United States to be
eligible to be President. It is highly unlikely that they would have. The only way they could have prevented that
was to maintain that only those children born in the United States to U.S.
citizen parents were natural born citizens.
Hence, that was the Framers’ definition of the clause. As we shall see below, the historical and
legal record confirms that the Framers’ definition of a natural born citizen
was just that.

The
Constitutional Convention and the Natural Born Citizen Clause

The Constitutional Convention took place in
Philadelphia, Pennsylvania at the Pennsylvania State House and lasted from May
25 (when a quorum of seven states was secured) to September 17, 1787.[5] Alexander Hamilton gave a speech to the
Convention on June 18, 1787. He read to
the Convention his Propositions for A Constitution of Government. See Works of Alexander Hamilton (page 393); 3 Max Farrand, The Records of the
Federal Convention of 1787, at 617 (1911)
(Farrand). This speech contained
a sketch of a plan which has become known as the English Plan. This plan can be read here, http://avalon.law.yale.edu/18th_century/debates_618.asp
. Hamilton’s plan was not considered
because it resembled the British system, with a strong centralized government, an
executive serving for life which resembled a monarch, and virtually did away
with state sovereignty and consolidated the states into a single nation. James Madison informed us in his Convention
notes that “[i]t meant only to give a more correct view of his ideas, and to
suggest the amendment which he should probably propose to the plan of Mr. R. in
the proper stages of its future discussion.
Although this plan was not formally before the Convention in any way,
several of the delegates made copies . . . Farrand. at 617.
Hamilton proposed in his Propositions that the "supreme executive
authority of the United States to be vested in a Governor. . ." and that
he also be the "commander-in-chief. . ." In this initial sketch, Hamilton did not
include any eligibility requirements for the supreme executive authority who he
would call the President rather than Governor in his later draft of the Constitution. In his speech to the Convention, Hamilton
advocated an executive for life. The
reason that he gave for such a life position was the following: “The Hereditary interest of the King was so
interwoven with that of the Nation, and his personal emoluments so great, that
he was placed above the danger of being corrupted from abroad-and at the same
time was both sufficiently independent and sufficiently controuled, to answer
the purpose of the institution at home. one of the weak sides of Republics was
their being liable to foreign influence & corruption. Men of little
character, acquiring great power become easily the tools of intermedling
Neibours.” Id. Here we can see
that Hamilton was very concerned with the harm that could be done to the nation
by an executive who was corrupted by foreign influence and intrigue.

This “sketch of a plan of government” was not formally
presented to the Convention, but delegates, including James Madison, had
various copies of this plan. Farrand, at
617. This plan does not include Hamilton’s
“born a citizen” language which he included in his later draft of a
constitution.

Before we go forward, let us consider who John Jay is. John Jay (1745-1829) was a Founding Father
who served as the first chief justice of the U.S. Supreme Court. He also held other top government posts. He was a native of New York and drafted that
state’s first constitution in 1777. The
following year, he was chosen president of the Continental Congress. He then
became U.S. minister to Spain. He also
helped broker the 1783 Treaty of Paris which ended the Revolutionary War.
President Washington appointed Jay the Supreme Court’s first chief justice in
1789. With the 1794 Jay Treaty he was
able to avert war with Great Britain. He
also served as governor of New York for six years and then retired from public
office.

A Committee of Detail met during the July 4 recess and
produced a rough draft of the Constitution.

On July 25, 1787, about five weeks after Hamilton’s
June 18 speech, John Jay wrote a letter to then-General Washington, who was
acting as president of the Constitutional Convention, stating: "Permit me to hint, whether it would not be wise
& seasonable to provide a strong check to the admission of Foreigners into
the administration of our national Government; and to declare expressly that
the Command in chief of the american army shall not be given to, nor devolve
on, any but a natural born Citizen" (“born” underlined in the original).

Jay demanded that there be a "strong check"
on foreign influence infiltrating the national government in general and the
Office of Commander in Chief of the Military specifically. A natural born
subject, whether under English common law or naturalization Acts of Parliament,
both of which permitted dual and conflicting allegiance at birth, did not
provide that strong check on foreign influence for which Jay was looking.

On July 26, 1787, the Constitutional Convention
instructed the Committee of Detail to come up with qualifications for the
offices of members of Congress and the President. 2 Farrand, at 116-17, 121-25. The Committee produced a report on August 6,
but it only contained qualifications for Representatives and Senators, and the
President was elected by the Legislature.
Id. at 177-79, 185. The Convention took these issues up again on
August 13. Elbridge Gerry expressed his
concern over foreigners allowed into the new government.[6] Mr. Gerry made a motion which the Convention
adopted on August 20 that the Committee be instructed to report back
qualifications for the Office of President.
Id. at 337, 344. On August 22, the Committee proposed that
the President “shall be of the age of thirty five years, and a Citizen of the
United States, and shall have been an Inhabitant thereof for Twenty one
years.” Id. at 366-67. The
Convention did not act upon the Committee’s report regarding eligibility for
the Office of President. On August 31,
the Convention agreed to refer all open matters that had yet to be agreed upon
to a Committee of Eleven, which had one member from each of the represented states.

The Committee of Eleven presented a draft of the
Constitution on September 4, 1787, about six weeks after Jay’s letter and just
two days after Washington wrote back to Jay.
For the first time, it was proposed in a draft of the Constitution that
the President be elected by the Electoral College, and not by the
legislature. This was seen as a way to
protect the Office of President from foreign influence and corruption to which
the legislature was subject. It was
believed by Madison that it would be much more difficult for the Electoral
College to be so corrupted. But the Committee
of Eleven went even further. While the
Committee on Detail originally proposed that the President must be merely a
“Citizen of the United States,” as well as a resident for 21 years, the
Committee of Eleven in a proposal that immediately followed that of the
Electoral College (that of the Electoral College was number “(4)”) only
grandfathered the status of a "Citizen” of the United States and required
future presidents to be a "natural born citizen." This was a stronger form of citizenship which
the Committee linked only to the singular Office of President and Commander in
Chief, to be satisfied by those born after the adoption of the
Constitution. There is no recorded
explanation for the addition of natural born citizen. Here is the first style of the clause as
presented by the Committee of Eleven:

(5) 'Sect. 2. No person except a natural born citizen
or a Citizen of the U. S. at the time of the adoption of this Constitution
shall be eligible to the office of President; nor shall any person be elected
to that office, who shall be under the age of thirty five years, and who has
not been in the whole, at least fourteen years a resident within the U. S.'

The natural born citizen proposal passed unanimously
without debate on September 7 (Id. at
536), which does not mean that the proposal was not discussed, for the
convention meetings were conducted in secrecy.

The draft of the Constitution then passed to the
Committee on Style which was tasked with producing the final version of the
Constitution. The Committee of Style
then gave the finishing touches to the clause and adopted it without
debate. The Convention then accepted it
on September 17, 1787 and sent it to the states for ratification. Id.
at 574, 598.

Yinger provides this summary of what transpired at the
Convention:

In one sense, the switch to the Electoral College
lowered the need for explicit presidential qualifications because it minimized
the line of potential foreign influence running through the Legislature. In
another sense, however, this switch broke the clear connection between the
citizenship requirements of legislators and the selection of the President, and
therefore boosted the symbolic importance of a citizenship requirement for the
President. This change in context, along with the Convention's decision to make
the President the commander-in-chief of the army, gave new weight to the
arguments in Jay's letter, and in particular to the suggestion in that letter
that the presidency be restricted to "natural born" citizens. When
Jay's letter arrived, probably sometime before August 13, the Convention was
not ready to deal with it, and indeed was somewhat hostile to its ideas. But
between August 31 and September 4, when the Committee of Eleven did its work,
the context changed and the seed that Jay had planted bore fruit.(37)

Yinger, at 5-6.

At the close of the Convention, Hamilton gave to
Madison another document which does contain in Article IX provision for the
election of a President and the “born a citizen” language for eligibility. Ferrand wrote that Hamilton gave this “paper”
to Madison at the end of the Convention and that Hamilton “would have wished to
be proposed by the Convention: He had
stated the principles of it in the course of the deliberations.” p. 619.
Farrand also wrote that Hamilton’s paper “was not submitted to the
Convention and has no further value than attaches to the personal opinions of
Hamilton.” p. 619. This draft of the Constitution is not to be
confused with his sketch of a plan of government (the British Plan) which he
read to the Convention on June 18, 1787.

Elliott’s Debates has additional information on this
proposed constitution. He explains:

No. 5.

Copy of a Paper communicated to James
Madison by Col. Hamilton, about the close of Convention in Philadelphia, 1787,
which, he said, delineated the Constitution which be would have wished to be
proposed by the Convention. He had stated the principles of it in the course of
the deliberations.

Note.— The caption, as well as the copy of the
following paper, is in the hand-writing of Mr. Madison, and the whole
manuscript, and the paper on which it is written, corresponds with the debates
in the Convention with which it was preserved. The document was placed in Mr.
Madison’s hands for preservation by Col. Hamilton, who regarded it as a
permanent evidence of his opinion on the subject. But as he did not express his
intention, at the time, that the original should be kept, Mr. Madison returned
it, informing him that he had retained a copy. It appears, however, from a
communication of the Rev. Dr. Mason to Dr. Eustis, (see letter of Dr. Eustis to
J Madison, 28th April, 1819,) that the original remained among the papers left
by Col. Hamilton.

In a letter to Mr. Pickering, dated Sept. 16 1803,
(see Pitkin’s History, Vol. 2, p. 259—60) Col Hamilton was under the erroneous
impression that this paper limited the duration of the presidential term to
three years. This instance of the fallibility of Col. Hamilton’s memory, as
well as his erroneous distribution of the numbers of the “Federalists” among
the different writers for that work, it has been the lot of Mr. Madison to
rectify; and it became incumbent, in the present instance, from the contents of
the plan having been seen by others, (previously as well its subsequently to
the publication of Col. Hamilton’s letter,) that it, also, should be published.

This subsequent draft of a constitution provided that
the President be then a citizen of one of the States or thereafter be “born a
citizen of the United States.” Article
IX Sec. 1 in Appendix F of the Hamilton Plan of 1787 read: “No person shall be eligible to the office of
President of the United States unless he be now a citizen of one of the States,
or hereafter be born a citizen of the United States.”

Hamilton gave his paper to Madison before the
convention came to an end which we know occurred on September 17, 1787, the
date the delegates signed the Constitution.
Hamilton served on committees that drafted convention rules and provided
for writing style. We can reasonably
assume that since the document was in the hands of these two influential
Founders and Framers, they would have discussed Hamilton’s presidential
citizenship proposal with others making decisions at that time. While we do not know exactly what happened
during the convention regarding Hamilton’s “now a citizen of one of the States”
and “hereafter be born a citizen of the United States,” we do know that they
were both rejected and “natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution[]” was accepted. We can see that the Framers did not accept
merely being a citizen of a state. They
required that for those who could demonstrate that they had that status as of
the time of the adoption of the Constitution, the President at a minimum had to be a
citizen of the United States. For those
born after the adoption of the Constitution, their standard was more stringent
than Hamilton’s born a citizen of the United States. They required more than just being born a
citizen of the United States. Rather,
they demanded that future presidents and commanders be natural born citizens of
the United States. As we can see from the
Constitution at Article I, Section 8, Clause 4, Congress was given naturalization
powers which included the power to make citizens of the United States from the
moment of birth and after birth. But
Congress was not given any power to make actual “natural born citizens.” Hence, a natural born citizen would have to
come into being through no positive law.[7] A natural born citizen would have to come
into being through his or her birth circumstances alone. Congress could extend the privileges,
immunities, and rights of a natural born citizen to persons that it would
naturalize in the future. But Congress
could not extend to those persons the privilege of being eligible to be
President which the Constitution only granted to actual natural born
citizens.

Hamilton did provide his paper containing the “born a
citizen of the United States” language to James Madison. Additionally, he most likely also discussed
his paper with other Convention delegates, even if he did not submit his paper
to the Convention. Ferrand stated that
Hamilton “had stated the principles of it in the course of the deliberations”
of the Convention. Id. at 619. It is hard to
accept that Hamilton would have gone through all that effort to draft that
proposed constitution and not share its principles with the Convention
delegates prior to the end of the Convention.
Hence, enough delegates probably knew about Hamilton’s “born a citizen
of the United States,” but no one made any suggestion that the Constitution
read “born a citizen of the United States” rather than “natural born citizen.”

Additionally, it does appear as though the Committee
of Eleven was influenced by Hamilton’s language or his ideas given that it did
add a grandfather clause (Hamilton said “now a citizen of one of the States”)
which, while not accepting “now” a citizen of one of the states, allowed for a
citizen of the United States at the time of the adoption of the Constitution to
be eligible to be President. It also
appears as though the same Committee was influenced by his “born a citizen of
the United States,” although they accepted Jay’s “natural born citizen” and not
just “born a citizen of the United States.”

What is critical to understand about the Hamilton
“born a citizen” language is that it shows that he did not request that the
President be a “natural born citizen.”
So he knew that the definition of the clause was a child born in the
country to citizen parents. By
advocating born a citizen, anyone who was made a citizen from the moment of
birth by positive law such as an Act of Congress would have been eligible to be
President. This would have included
children born out of the United States to U.S. citizen parents and even
children born in the United States to alien parents who should by positive law
be made citizens from the moment of birth.
But the Convention adopted “natural born citizen,” a word of art, and
not “born a citizen,” a mere description, which means that the delegates wanted
a more stringent standard than just born a citizen. Given the meaning of the word of art natural
born citizen, that standard was a child born in a country to parents who were
its citizens.

Defining
a Natural Born Citizen and All Those Who Are Not

A citizen is a member of a nation originally made by
associating with others to form that nation and thereafter by birth alone or by
naturalization through positive law. As to those citizens made by birth alone,
they are the natural born citizens, so made by their birth circumstances alone.
Given their birth circumstances, they do
not need a nation to confer upon them at birth or after birth its nationality
or citizenship by any means. Those birth
circumstances, as confirmed by the law of nations and American national common
law, are birth in the county to parents who were its citizens at the time of
the child's birth. See Emer de Vattel, The Law of Nations, Sections 212 to 217
(1758) (1797) ("The citizens are the members of the civil society: bound
to this society by certain duties, and subject to its authority, they equally
participate in its advantages. The natives, or natural-born citizens, are those
born in the country, of parents who are citizens"); Minor, 88 U.S. at 167-68) (“The Constitution does not in words say
who shall be natural-born citizens. Resort must be had elsewhere to ascertain
that. At common-law, with the nomenclature of which the framers of the
Constitution were familiar, it was never doubted that all children born in a
country of parents who were its citizens became themselves, upon their birth, citizens
also. These were natives, or natural-born citizens, as distinguished from
aliens or foreigners. Some authorities go further, and include as citizens
children born within the jurisdiction, without reference to the citizenship of
their parents. As to this class, there have been doubts, but never as to the
first.” Minor held that a natural born citizen did not need the Fourteenth
Amendment or any other law to be a citizen of the United States); accord Wong Kim Ark, 169 U.S. at 665) ("The child of an alien, if born
in the country, is [by virtue of the Fourteenth Amendment] as much a citizen as
the natural born child of a citizen, and by operation of the same
principle"). As to the other
citizens, they are so made by the naturalizing force of positive laws. In the
United States, these positive laws are, in addition to the Fourteenth
Amendment, naturalization Acts of Congress and treaties.

Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides: “(a) As used in this chapter--. . . (23) The
term ‘naturalization’ means the conferring of nationality of a state upon a
person after birth, by any means whatsoever." But this is a definition of naturalization
only for purposes of “this chapter,” which has specific consequences connected
to whether someone obtains U.S. citizenship at birth or after birth. It is a definition of the term that Congress
is applying to “a state,” which means to any nation in the world. This is not
the broad definition of the term as used in the Constitution. Under the Constitution, any person who is not
a common law natural born citizen is an “alien or foreigner” and in need of
naturalization by any means whatsoever. Minor,
88 U.S. at 167-68. This includes persons
who are born in the United States to one or two alien parents or born out of
the United States and its jurisdiction, regardless of the citizenship of the
parents. As to those children born in
the United States to one or two alien parents, they are made citizens of the
United States at birth specifically by the Fourteenth Amendment, which
incorporates the English common law jus soli rule of citizenship and its
naturalizing force. See Vattel, The Law
of Nations, Section 214, called “Naturalisation,” where he stated: “Finally, there are states, as, for
instance, England, where the single circumstances of being born in the country
naturalises the children of a foreigner.”
As to those children born out of the territory and jurisdiction of the
United States, if born to one or two U.S. citizen parents, they are made
citizens of the United States at birth by Congress through its naturalization Acts.

Application
to Ted Cruz

"Trusted" Ted Cruz, who was born in Canada
in 1970, says he did not know until 2013 that he was a Canadian citizen. The
Dallas Morning News reported on August 19, 2013: “Sen. Ted Cruz acknowledged late Monday that
he probably has been a lifelong Canadian, and vowed to renounce that
citizenship now that he realizes he’s had it.” “‘The Dallas Morning News says that I may technically have dual
citizenship,’ he said in a statement. ‘Assuming that is true, then sure, I will
renounce any Canadian citizenship. Nothing against Canada, but I’m an American
by birth and as a U.S. Senator, I believe I should be only an American.’” The newspaper further reported: “Cruz was born in Calgary, Alberta, on Dec.
22, 1970. His mother is a lifelong U.S. citizen. His father, born in Cuba, remained
a Cuban citizen until he was naturalized as an American in 2005. When Cruz was
born, his parents were living in Canada, where they had opened a seismic-data
business in the oil patch. Cruz lived in Canada until he was 4 years old, and
spent the rest of his childhood in Texas. . . . Under Canadian law, his birth
on Canadian soil made him a natural born Canadian. Under U.S. law, his mother’s citizenship made
him a U.S. citizen from birth. Both countries allow for dual citizenship.” http://www.dallasnews.com/news/local-news/20130819-sen.-ted-cruz-to-renounce-canadian-citizenship.ece
.

Generally, under Canada's Citizenship Act of 1947,
those born in Canada were automatically citizens at birth unless their parent
was a foreign diplomat. So, Ted Cruz, the lawyer who graduated from
Harvard Law School and who successfully argued cases before the U.S. Supreme
Court, who got a passport in 1986 so that he could travel to Great Britain for
a high school class trip, who is a U.S. Senator, who knew that one born in the
United States while subject to its jurisdiction (which includes birth to alien
parents) is a citizen of the United States, who knew that one who is born in
the United States who leaves the U.S. even for one minute
after his birth is still a U.S. citizen, who knew that in the United States one
can get a U.S. passport by presenting a U.S. birth certificate showing that one
was born in the United States, who knew that his
father was born in Cuba and that his place of birth made him a Cuban citizen,
who knew that his mother was born in the United States and that her place of birth made
her a U.S. citizen, and who knew that he himself was born in Canada (the place
of his birth) to parents neither of whom were foreign diplomats, did not know
that his being born in Canada made him a Canadian citizen? Now
really?

Furthermore, maybe Senator Cruz, Chairman of the
Senate Commerce Subcommittee on Space, Science and Competitiveness, can tell us
what he knows about persons born in foreign countries getting a security
clearance from the U.S. Government. Cruz said that “as a U.S. Senator, I
believe I should be only an American,” but he did not disclose to the people of
Texas that he was a citizen of Canada at birth when he ran for that
office. This is even with U.S. Senators,
among the various responsibilities they have relative to U.S. relations with
foreign nations, being called upon to vote on treaties with foreign
nations. In 2014, after being confronted
by the public media about his Canadian birthright citizenship, Cruz did
renounce that Canadian citizenship with which he was born. That was 18 months after he took the oath of
office as a U.S. Senator. But Cruz, born
to a Cuban citizen father, was also born potentially a Cuban citizen at birth. To date, he has not mentioned his potential Cuban
citizenship at birth, even though he could have qualified through his Cuban
father for that citizenship under the Cuban Constitution.[8] What have Cruz’s
activities been in the U.S. Senate relative to the United States normalizing relations
with Cuba? I am not faulting and never
would fault Cruz for his birth circumstances.
But a U.S. Senator and President, acting in a public capacity, has to
disclose to the public what his or her private interest via-a-vis a foreign
nation may be.

Regardless of what Cruz knew or did not know about his
Canadian citizenship, Cruz was born in Canada presumably to a U.S. citizen
mother, but to a non-U.S. citizen father.
Hence, he was not born in the country to parents who were its citizens,
which means that he is not nor can he be a citizen through his birth
circumstances alone. Rather, he is what Minor
called an “alien or foreigner” in need of naturalization.[9] Therefore, he is not nor
can he be a natural born citizen. Not being a natural born citizen, for him to
be a citizen he needed the aid of a positive law, which in his case is a
naturalization Act of Congress. He was
not born in the United States and so he could not rely upon the Fourteenth
Amendment, which provides the floor standard of citizenship for those born in
the United States, requiring that they be at least born subject to its
jurisdiction. Being born in a foreign
country, he had to rely upon a naturalization Act of Congress, without which
Cruz would have been born an alien. This
means that Cruz is at best a naturalized "citizen" of the United
States "at birth," so made only by a naturalization Act of Congress
(in his case it is the Immigration and Nationality Act of 1952[10]). Congress through a
naturalization Act made Cruz a citizen of the United States “at birth,” meaning
that he did not have to go through any naturalization process after birth.[11] But still, it is only because of this
naturalization Act that his birth circumstances allowed him to be a citizen of
the United States at birth. In other words, Cruz's birth circumstances alone would
have made him an alien and not a citizen. It is only by virtue of that
naturalization Act which took up his birth circumstances and allowed him to
become a citizen at birth. He therefore
is not and cannot be a “natural” born citizen.

Cruz and his supporters proclaim that the Framers
would have accepted Cruz as a true natural born citizen because of how the
First Congress treated persons such as him in the Naturalization Act of 1790.[12] First, Congress does not
have the constitutional power to make anyone a natural born citizen. In matters of citizenship, the Constitution at
Article I, Section 8, Clause 4 gives to Congress only the power [t]o establish
an uniform Rule of Naturalization . . . throughout the United States.” This naturalization power does not include
the power to make anyone a natural born citizen, who does not need any
naturalization Act of Congress or any other law to be a citizen. Congress
was not given any powers to bestow citizenship upon anyone through any process
other than naturalization. Hence, if
Congress made those foreign-born children citizens of the United States, it did
so only through its naturalization powers.

Second, that Act is a naturalization Act of Congress
and surely a natural born citizen does not need a naturalization Act of
Congress to be a "natural" born citizen.

Third, the Act provided: “And the children of such person so
naturalized, dwelling within the United States, being under the age of twenty
one years at the time of such naturalization, shall also be considered as
citizens of the United States. And the
children of citizens of the United States that may be born beyond Sea, or out
of the limits of the United States, shall be considered as natural born
Citizens.” Congress treated children
born in the United States to alien parents as aliens who could naturalize as
citizens of the United States upon their parents naturalization if done during
their children’s minority and when they shall be dwelling in the United States. This was consistent with the definition of a
natural born citizen which provided that only children born in the country to
parents who were citizens were natural born citizens and therefore also ipso
facto citizens of the United States. As
to children born out of the United States, the Act said that children born out
of the United States to U.S. citizen parents (both father and mother had to be
U.S. citizens) "shall be considered as natural born citizens of the United
States." Hence, it only treated children born out of the United States to
U.S. citizen parents for all intents and purposes as natural born citizens,
meaning that it gave by statute to those children the same privileges,
immunities, and rights enjoyed by true natural born citizens which under the
Constitution could not include the privilege of being President.

Fourth, Congress, under the leadership of James
Madison and with the approval of President Washington, repealed that Act in
1795, when it passed the Naturalization Act of 1795,[13] which provided in Section
3: “And be it further enacted, that the
children of persons duly naturalized, dwelling within the United States, and
being under the age of twenty-one years, at the time of such naturalization,
and the children of citizens of the United States, born out of the limits and
jurisdiction of the United States, shall be considered as citizens of the
United States.” As we can see, Congress,
again consistent with the definition of a natural born citizen, treated
children born in the United States to alien parents as aliens, allowing them to
become citizens of the United States upon their parents naturalizing if done
during their children’s minority and if those children shall be dwelling in the
United States. It also surgically
removed the "shall be considered as natural born citizens” language of the
1790 Act and replaced it with "shall be considered as citizens of the
United States." What is critical to understand is that Congress treated
children who naturalized after birth and those who became citizens at birth by
birth out of the United States to U.S. citizen parents the same, i.e., as
“citizens of the United States.”
Congress clearly informed that those children born out of the United
States to U.S. citizen parents were not to be accepted as natural born
citizens, but rather as citizens of the United States, like children who become
citizens through naturalization after birth.
Congress has never again used the natural born citizen language in any
of its naturalization Acts. Rather, it has since 1795 told us that any person
becoming a citizen under one of its naturalization Acts is a citizen of the
United States. It is amazing that those who rely upon the 1790 Act to demonstrate
that Cruz is a natural born citizen omit from their story that Congress
repealed that Act in 1795 and in the 1795 Act said that those children shall be
considered as citizens of the United States and not as natural born
citizens.

Fifth, Cruz was born to an alien father which means
that he could not benefit from the 1790 Act which required a child born out of
the territory and jurisdiction of the United States be born, not only to a U.S.
citizen mother but also to a U.S. citizen father to be bestowed U.S.
citizenship at birth. The 1790 Act,
along with that of 1795 and 1802, also required that the citizen father be a resident
of the United States prior to his child’s birth. Not until 1934 could someone like Cruz, born
in a foreign country to a U.S. citizen mother and alien father, become a
citizen of the United States.[14] Somebody born under the birth circumstances of
a Ted Cruz, born in a foreign country presumably to a U.S. citizen mother and
to an alien father, was not even a citizen of the United States let alone a
natural born citizen of the United States until 1934, when Congress passed a
naturalization Act for the first time allowing children born out of the United
States to a U.S. citizen mother and to an alien father to qualify as a citizen
of the United States. Cruz and his
supporters also hide this little inconvenient truth from the public. Surely, we
are not to reasonably believe that someone born under the same birth
circumstances as Cruz, who was under the Constitution and under the
naturalization Acts of Congress an alien from 1776 until 1934 and only become a
citizen in 1934, could be a natural born citizen.

Cruz is correct that if he wants to be President and
Commander in Chief, he has to be “only an American.” But for a natural born citizen, that status starts
at birth, not at age 43, which is when Cruz renounced the foreign citizenship
with which he was born.

The Founders and Framers wrote the Constitution in a
way that best provided for the protection of our unalienable rights to life,
liberty, property, and the pursuit of happiness. They sought to do that by
giving us a constitutional republic and providing for the survival and
preservation of that republic. In the governmental scheme that they gave us,
they provided for the Office of President and Commander in Chief, a singular
and all-powerful office involving the concentration of both civilian and
military power into one person. Because of such concentration of power in one
individual, the Framers recognized that such offices also presented great risk
to the republic and its people. They therefore gave us the “natural born
Citizen” clause as one basis for eligibility to such offices. Through the
natural born citizen clause, they instructed us that such power must fall into
the hands of a person who can be trusted with it to the greatest degree
possible and that such guarantee is of much greater importance to the survival
and preservation of the constitutional republic than the fleeting politics and
personal favor of having one person necessarily occupy that office. What is
profound is that the Founders and Framers put their trust in “Nature and
Nature’s God”[15]
and not in political and legal institutions to accomplish that end.

This historical and legal evidence, not meant to be
exhaustive, provides a clear picture that Ted Cruz is not a natural born
citizen and therefore not eligible to be President.[16] So, is Ted Cruz a natural born citizen and to
be “TrusTed?” I think not.

[4] Following
the Perth Agreement in 2011, on March 26, 2015, legislation amending
the act came into effect across the Commonwealth realms. Today people who marry
Catholics are eligible to the British throne.

[5] For an excellent discussion of the
Constitutional Convention and the natural born citizen clause, see John Yinger,
The Origins and Interpretation of the
Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President
to be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born
Adoptees,? available at http://faculty.maxwell.syr.edu/jyinger/citizenship/history.htm

[6] Historian Richard
B. Morris writes: “Jay’s ‘anti-foreigners’
proposal appears to have been reflected in the motion that Elbridge Gerry made
on the floor of the Convention in August.”
Richard B. Morris, Witnesses at
the Creation: Hamilton, Madison, Jay and
the Constitution 189-90 (1985).

[7] The concept of
"positive law" has existed since the beginning of ordered legal
systems. Positive law includes constitutions, statutes, case law, and any other
law adopted by whatever sovereign has power to make law at any given moment in
time. It has been said by many political and legal philosophers
throughout the ages that positive law has its origin in what man perceives to
be natural law and God's law, or what Thomas Jefferson in The Declaration of
Independence called “the Laws of Nature and of Nature’s God,” meaning the laws
of nature and the laws of nature's God.

Article
28: Cuban citizenship is acquired by birth or through naturalization. Article
29: Cuban citizens by birth are:
a) those born in national territory, with the exception of the children of
foreign persons at the service of their government or international
organizations. In the case of the children of temporary foreign residents in
the country, the law stipulates the requisites and formalities;
b) those born abroad, one of whose parents at least is Cuban and on an official
mission;
c) those born abroad, one of whose parents at least is Cuban, who have complied
with the formalities stipulated by law;
d) those born outside national territory, one of whose parents at least is
Cuban and who lost their Cuban citizenship provide they apply for said
citizenship according to the procedures stated by law;
e) foreigners who, by virtue of their exceptional merits won in the struggles
for Cuba’s liberation, were considered Cuban citizens by birth.

[9] With respect to children born out of the
United States, Wong Kim Ark explained
that such children can be citizens of the United States only if Congress makes
them so through a naturalization Act and if it does not, those children are
aliens. United States v. Perkins, 17 Fed. Supp. 177 (D.D.C. 1936); Schaufus v. Attorney General, 45 Fed.
Supp. 61 (1942); Zimmer v. Acheson,
191 Fed.2d 209 (10th Cir. 1951); Montana v. Kennedy, 366 U.S. 308 (1961); Rogers v. Bellei, 401 U.S. 815 (1971); and Miller v. Albright, 523 U.S. 420 (1998), later all observed the
same. They all said that such children could be citizens of the United
States only through a naturalization Act of Congress, and that without such
Act, such children would be aliens.

[10] The
naturalization statute that made Cruz a citizen of the United States at birth, section 301(a)(7) of the Immigration and Nationality Act of 1952. Section 301, effective on December 24, 1952,
provided:

SEC.
301. (a) The following shall be nationals and citizens of the United States at
birth: ….

(7)
a person born outside the geographical limits of the United States and its
outlying possessions of parents one of whom is an alien, and the other a citizen
of the United States who, prior to the birth of such person, was physically
present in the United States or its outlying possessions for a period or
periods totaling not less than ten years, at least five of which were after
attaining the age of fourteen years: Provided That any periods of honorable
service in the Armed Forces of the United States by such citizen parent may be
included in computing the physical presence requirements of this paragraph.

Sec.
301(a)(7) required a U.S. citizen mother when the father is an alien to have
been physically present in the United States for ten years, including five
after reaching the age of fourteen, to transmit citizenship to foreign-born
children. The ten-year requirement remained in effect from 12:01 a.m. EDT
December 24, 1952, through midnight November 13, 1986, and still applies to
persons born during that period. Section 301(a)(7) was amended by Public Law
103-416 on October 25, 1994, creating section INA 301(g), which uses this
language with respect to the amount of time that a person’s U.S. citizen mother
has to be physically present in the United States prior to giving birth to her
child out of the United States: “not
less than five years, at least two of which were after attaining the age of
fourteen years.” See 8 U.S.C. Section
1401(g). It is settled law that the naturalization statute of Congress that was
in effect at the time of one's birth is the statute that controls whether one
is a U.S. citizen or not. Please note
that given that Barack Obama was born on August 4, 1961 to a U.S. citizen
mother and a non-U.S. citizen father, if he was not born in the United States
he would be an alien, for his mother was only 18 years old at the time of his
birth.

[11] Under the Child
Citizenship Act of 2000 (Public Law No: 106-395) foreign-born adoptees become
citizens of the United States as soon as their adoptions are finalized, with no
need for them to go through any separate naturalization process after their
birth. Under the logic of the thesis that any person who becomes a
citizen of the United States without having to go through any naturalization
process after birth is a natural born citizen, these adoptees would not be “naturalized”
citizens and therefore natural born citizens.
But still, S. 2128 was proposed to confirm that they were to be treated
as natural-born citizens. S. 2128 provided
a definition of a natural born citizen that included foreign-born
adoptees. Congress never passed this bill. This example further shows that we do not
arrive at who is and who is not a natural born citizen by manipulating the definition
of “naturalization.” Rather, we arrive
at it by showing that one does or does not satisfy the sufficient and necessary
conditions of being a natural born citizen which are born or reputed born in
the country to parents who were its citizens.

[12] United States
Congress, “An act to establish an uniform Rule of Naturalization” (March 26,
1790).

Be
it enacted by the Senate and House of Representatives of the United States of
America, in Congress assembled, That any Alien being a free white person, who
shall have resided within the limits and under the jurisdiction of the United
States for the term of two years, may be admitted to become a citizen thereof
on application to any common law Court of record in any one of the States
wherein he shall have resided for the term of one year at least, and making
proof to the satisfaction of such Court
that he is a person of good character, and taking the oath or
affirmation prescribed by law to support the Constitution of the United States,
which Oath or Affirmation such Court shall administer, and the Clerk of such
Court shall record such Application, and the proceedings thereon; and thereupon
such person shall be considered as a Citizen of the United States. And the children of such person so
naturalized, dwelling within the United States, being under the age of twenty
one years at the time of such naturalization, shall also be considered as
citizens of the United States. And the
children of citizens of the United States that may be born beyond Sea, or out
of the limits of the United States, shall be considered as natural born
Citizens: Provided, that the right of
citizenship shall not descend to persons whose fathers have never been resident
in the United States: Provided also,
that no person heretofore proscribed by any States, shall be admitted a citizen
as aforesaid, except by an Act of the Legislature of the State in which such
person was proscribed.

Sess.
II, Chap. 3; 1 stat 103, 1st Congress; March 26, 1790.

[13] United States Congress, “An act to establish
an uniform rule of Naturalization; and to repeal the act heretofore passed on
that subject” (January 29, 1795).

For
carrying into complete effect the power given by the constitution, to establish
an uniform rule of naturalization throughout the United States:

SEC.1.
Be it enacted by the Senate and House of Representatives of the United States
of America, in Congress assembled, That any alien, being a free white person,
may be admitted to become a citizen of the United States, or any of them, on
the following conditions, and not otherwise: --

First.
He shall have declared, on oath or affirmation, before the supreme, superior,
district, or circuit court of some one of the states, or of the territories
northwest or south of the river Ohio, or a circuit or district court of the
United States, three years, at least, before his admission, that it was bona
fide, his intention to become a citizen of the United States, and to renounce
forever all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty whatever, and particularly, by name, the prince, potentate, state
or sovereignty whereof such alien may, at that time, be a citizen or subject.

Secondly.
He shall, at the time of his application to be admitted, declare on oath or
affirmation before some one of the courts aforesaid, that he has resided within
the United States, five years at least, and within the state or territory,
where such court is at the time held, one year at least; that he will support
the constitution of the United States; and that he does absolutely and entirely
renounce and abjure all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty whatever, and particularly by name, the
prince, potentate, state, or sovereignty, whereof he was before a citizen or
subject; which proceedings shall be recorded by the clerk of the court.

Thirdly.
The court admitting such alien shall be satisfied that he has resided within
the limits and under the jurisdiction of the United States five years; and it
shall further appear to their satisfaction, that during that time, he has
behaved as a man of a good moral character, attached to the principles of the
constitution of the United States, and well disposed to the good order and
happiness of the same.

Fourthly.
In case the alien applying to be admitted to citizenship shall have borne any
hereditary title, or been of any of the orders of nobility, in the kingdom or
state from which he came, he shall, in addition to the above requisites, make
an express renunciation of his title or order of nobility, in the court to
which his application shall be made; which renunciation shall be recorded in
the said court.

SEC.
2. Provided always, and be it further enacted, That any alien now
residing within the limits and under the jurisdiction of the United States may
be admitted to become a citizen on his declaring, on oath or affirmation, in
some one of the courts aforesaid, that he has resided two years, at least,
within and under the jurisdiction of the same, and one year, at least, within
the state or territory where such court is at the time held; that he will
support the constitution of the United States; and that he does absolutely and
entirely renounce and abjure all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty whatever, and particularly by name the prince,
potentate, state, or sovereignty, whereof he was before a citizen or subject;
and moreover, on its appearing to the satisfaction of the court, that during
the said term of two years, he has behaved as a man of good moral character,
attached to the constitution of the United States, and well disposed to the
good order and happiness of the same; and when the alien applying for admission
to citizenship, shall have borne any hereditary title, or been of any of the
orders of nobility in the kingdom or state from which he came, on his moreover
making in the court an express renunciation of his title or order of nobility,
before he shall be entitled to such admission; all of which proceedings,
required in this proviso to be performed in the court, shall be recorded by the
clerk thereof.

SEC.
3. And be it further enacted, that the children of persons duly
naturalized, dwelling within the United States, and being under the age of
twenty-one years, at the time of such naturalization, and the children of
citizens of the United States, born out of the limits and jurisdiction of the
United States, shall be considered as citizens of the United
States: Provided, That the right of citizenship shall not descend
to persons, whose fathers have never been resident of the United States:
Provided also, That no person heretofore proscribed by any state, or who has
been legally convicted of having joined the army of Great Britain during the
late war, shall be admitted a citizen as foresaid, without the consent of the
legislature of the state, in which such person was proscribed.

SEC.
4. And be it further enacted, That the Act intituled, “An act to
establish an uniform rule of naturalization,” passed the twenty-sixth day of
March, one thousand seven hundred and ninety, be, and the same is hereby
repealed.

Sess.
II, Chap. 19, 20; 1 stat 414, 3rd Congress; January 29, 1795.

[14] The Naturalization Act of 1790 required that
the foreign-born child be born to “citizens” and that the father be a resident
of the United States prior to the child’s birth, meaning that the child had to
be born to a father and mother who were U.S. citizens in order for that child
to be considered as a natural born citizen.
Cruz was born only to a U.S. citizen mother. Not being born also
to a U.S. citizen father, Cruz would not have been a citizen of the United
States under the early naturalization Acts of Congress (1790, 1795, 1805, and
1855) and was made a citizen only because Congress eventually did away with the
common law doctrine of coverture (allowing husbands and wives to have their own
citizenship rather than wives acquiring that of their husbands) in 1922 with
the Cable Act of 1922 (ch.
411, 42 Stat. 1021, "Married Women's Independent Nationality Act"). If born between 1802 and 1855 to U.S. citizen
parents who acquired that status after 1802, Cruz, born out of the territory
and jurisdiction of the United States, would under the Naturalization Act of
1802 not even be a citizen of the United States, let alone a natural born
citizen of the United States. Cruz got
lucky because Congress in 1934 passed a naturalization Act (Act of May 24,
1934, § 1, 48 Stat. 797) which for the first time allowed a person born in a
foreign country to a U.S. citizen mother and a non-U.S. citizen father to be a
citizen of the United States. That naturalization rule was carried
forward in the Nationality Act of 1940 (H.R. 9980; Pub.L. 76-853; 54 Stat.
1137, enacted October 14, 1940) and the Immigration and Nationality Act of 1952 (Pub.L.
82–414, 66 Stat. 163, enacted June 27, 1952), the latter being the statute in
effect when Cruz was born and without which or without those of 1934 and 1940,
Cruz would have been born an alien.

[15] “When in the
Course of human events, it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to assume among the
powers of the earth, the separate and equal station to which the Laws of Nature
and of Nature's God entitle them, a decent respect to the opinions of mankind
requires that they should declare the causes which impel them to the
separation.” Declaration of
Independence, Preamble.

[16] Marco Rubio is
also not a natural born citizen.
Somebody born under the birth circumstances of a Marco Rubio, born in
the United States to alien parents, was not even a citizen of the United
States, let alone a natural born citizen of the United States, until the 1898
U.S. Supreme Court decision of Wong Kim
Ark, which made such persons citizens of the United States from the moment
of birth. The U.S. Supreme Court in The
Slaughterhouse Cases, 83 U.S. 36, 72-73 (1873) had said they were not even
citizens under the Fourteenth Amendment. (“The phrase, ‘subject to its
jurisdiction’ was intended to exclude from its operation children of ministers,
consuls, and citizens or subjects of foreign States born within the United
States.”) Minor, which defined a natural born citizen as a child born in a
country to parents who were its citizens at the time of the child’s birth, had
explained that "there have been doubts" whether such children were
even just citizens of the United States under the Fourteenth Amendment.
The purpose of this article has been to further focus on Ted Cruz’s
ineligibility to be President rather than on Marco Rubio’s. For full details on how Rubio is not a
natural born citizen, see my many articles and comments at my blog, http://puzo1.blogspot.com .

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